delivered the opinion of the court:
This is an action brought by plaintiff in error against defendants in error for the recovery of certain lands in Clay county which are thus described in the declaration: “E. ½ N. E. ¼ Sec. 4, and all that part of E. ½ S. E. ¼ Sec. 4 that lies north of the middle of the Little Wabash river, all in town 3, N., R. 7, E. of 3d P. M., containing 100 acres.” Plea of not guilty was filed. The case was tried before a jury, who found the defendants not guilty. Motion for new trial was overruled, and judgment for defendants was rendered upon the verdict. The present writ of error is sued out for the purpose of reviewing such judgment.
Plaintiff’s attorney filed an affidavit under the statute, that plaintiff claimed title through a common source of title with the defendants, namely, from Martin R. M. Wallace. The plaintiff then introduced in evidence a quitclaim deed, dated October 2, 1894, and recorded October 4, 1894, executed by Wallace and his wife to plaintiff, conveying the east half of the north-east quarter and the east half of the south-east quarter of said section 4, containing 160 acres; and also a deed, dated May 22, 1865, and recorded May 31, 1865, executed by a master in chancery to Wallace in pursuance of a sale under a decree of foreclosure, rendered by the circuit court of Clay county in the case of Martin R M. Wallace against Benjamin W. Edwards and Sarah A. Edwards.
The defense of the defendants was possession and payment of taxes for seven successive years under claim and color of title, etc. The deed introduced as color of title was a quit-claim deed, dated June 5, 1885, recorded June 10,1885, executed by William I. Clifton, clerk of the county court, to “Burns and Hawkins,” conveying the east half of the north-east quarter containing 78AV acres, and the east half of the south-east quarter containing 80 acres of said section 4, and reciting sale on June 4, 1883, for non-payment of taxes. Defendants also introduced in evidence a deed, dated December 24, 1891, and recorded December 26,1891, executed by Richard J. Burns and wife to Edward H. Hawkins, conveying all that part of the east half of the south-east quarter that lies north of the center of the Little Wabash river, 20 acres, and also the east half of the north-east quarter, 80 acres, of said section 4; also a deed, dated and recorded December 26, 1891, executed by Hawkins and wife to the appellees, William Edwards and Young Edwards. The defendants introduced tax receipts for the purpose of showing payment of taxes for the years from 1885 to 1893 inclusive, and examined witnesses upon the question of possession.
The judgment must be reversed. There was not proof of such payment of taxes as the law requires. “Inasmuch as the payment of taxes under color of title operates to defeat the paramount and all other titles, when relied on, the proof must be clear and convincing.” (Hurlbut v. Bradford,
Again, possession of the premises for a full period of seven years is not shown. It appears from the testimony, that no one was in possession from October, 1890, to December, 1891. There was a hiatus in the possession for a period of more than one year. (Schenck v. White,
The plaintiff asked, and the court refused, an instruction, to the effect that, where a plaintiff states on oath upon the trial that he claims title through a common source with the defendant, it is sufficient for him to show title from such common source. We see no reason, why this instruction should not have been given. Plaintiff made the affidavit, that he claimed title in fee simple to the lands in question through Wallace as a common source of title with defendants, in accordance with the statute. (1 Starr & Cur. p. 986). Neither of the defendants, nor any agent or attorney for them, denied on oath that they claimed title through such source, or that they claimed through some other source. Where the plaintiff in ejectment swears that both parties claim title through a common source, he is not obliged to go back of the common source and trace his title from the government, unless the defendant denies under oath that he claims title under such source, or swears that he claims title under some other source. (Chicago, Rock Island and Pacific Railway Co. v. Hardt,
But, in our view of the case, there is a more serious objection to the defense sét up by the defendants than any which has yet been referred to. The tax deed relied upon as color of title was executed in pursuance of a sale made on June 4, or June 5, 1883, for non-payment of taxes. This sale was made by Edward H. Hawkins, acting as crier or auctioneer for the county treasurer and collector. Hawkins was at that time clerk and deputy of the county collector. The Revenue act (secs. 152, 153), provides that collectors may appoint deputies, and for warrants to such deputies. (2 Starr & Cur. Stat. pp. 2073, 2074). It also provides (sec. 201), that the collector shall attend at the court house and offer for sale the delinquent lands, either in person or by deputy. (Id. p. 2094). At the sale so made by Hawkins the land in question was bought by the firm of Burns & Hawkins engaged in the business of making abstracts of title and handling real estate, of which firm Edward H. Hawkins was a member. In other words, Hawkins, acting as deputy collector, sold the land to himself or to a firm of which he was a member.
It is a well settled rule, that a trustee or agent to purchase or sell property is forbidden to purchase from or sell to himself. Equity will not allow any one to profit by a violation of his own duty. A design on the part of such a trustee or agent to purchase or sell on his own account creates an interest which is opposed to his duty to another. “The rule applies to sales made at public auction and to judicial sales as well as private sales. * * * j-j- extends not only to the agent himself, but to those in his immediate employ who are engaged in the-transaction of his business, which is, necessarily, the business of the agent’s principal.” (1 Beach’s Eq. Jur. secs. 127, 133; Lagger v. Mutual Union Loan Ass.
It follows, that neither the firm of Burns & Hawkins, nor either member of it, could set up the tax deed in question as color of title made in good faith under the Limitation law. Whether or not a purchaser from the firm, or either of its members, before the period of seven years had run, would be affected by such want of good faith may be a question. It has been held that, where there is such a fraud upon the owner of the land as to take from the defense the statutory element of good faith, a purchaser from the grantee in the tax deed would not be affected by it. (Morrison v. Norman,
The deed here set up as color of title, being a deed to a partnership, is nothing more than a contract to convey, and vested only an equitable title in Burns & Hawkins, whose deeds to defendants in error vested in them only an equitable title. The tax deed, being an instrument which on its face amounts only to a contract to convey, is not such an instrument as amounts to color of title under the Limitation act. Therefore, even if defendants in error could not be affected by the circumstance already referred to as indicating the absence of good faith on the part of Burns & Hawkins, they are not purchasers from grantees holding a legal title, but purchasers of a mere equitable title, or assignees of a contract to convey. The tax deed is equally unavailable, when invoked by them as color of title, as it would be in the hands of the firm named therein.
For the reasons here stated, the judgment of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.